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2018 DIGILAW 1111 (HP)

Subhash Chand v. Bhim Sen

2018-06-15

DHARAM CHAND CHAUDHARY

body2018
JUDGMENT Dharam Chand Chaudhary, J —Order dated 15.11.2017 passed by learned Civil Judge, Baijnath, District Kangra, H.P. in an application under Order 21 Rule 11(2) of the Code of Civil Procedure registered as Execution No. 14/17, is under challenge in this petition. 2. The judgment and decree, Annexure P-1 passed by learned Civil Judge (Junior Division), Baijnath, District Kangra, H.P. in Civil Suit No. 157/10 not only affirmed by learned lower appellate Court but also this Court as well as the Apex Court, has resulted in initiating execution proceedings at the instance of respondent-decree holder. The petitioner-JD has objected to the execution proceedings on the grounds inter-alia that without there being any decree of possession passed in favour of DH, he cannot be put in possession of the suit land. The sale of the suit land by their father and in view of partition thereof behind the back of the plaintiff-JD as he was not served in the partition proceedings, the suit land should have been declared joint of the parties. The applicant, one of the decree holders, has only part interest in the suit land to the extent of his share and not in the entire suit land. Also that, in view of the provisions contained under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, the DH, who is not an agriculturist of the State of Himachal Pradesh is not entitled to the possession of the suit land except for the permission of the appropriate authority. Learned trial Judge on appreciation of the given facts and circumstances and on perusal of the judgment and decree sought to be executed has answered all the objections in negative and has dismissed the same. 3. Mr. Suneet Goel, learned counsel representing the petitioner-JD has strenuously contended that the decree for the relief of possession of the suit land is not executable. 4. Mr. Ajay Sharma, learned counsel representing the respondent-DH has repelled the arguments so addressed while submitting that the decree sought to be executed has to be gone into as a whole and not only qua the relief granted. He has also pointed out from the decree that the respondent-DH has been held entitled to the possession of the suit land. Mr. Ajay Sharma, learned counsel representing the respondent-DH has repelled the arguments so addressed while submitting that the decree sought to be executed has to be gone into as a whole and not only qua the relief granted. He has also pointed out from the decree that the respondent-DH has been held entitled to the possession of the suit land. As regards objection qua right of the respondent-DH to claim possession of the suit land barred under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, it is canvassed that the Act has retrospective application and not prospective. 5. On analyzing the rival submissions and also the record of the case, no doubt, in the relief granted, it is the entries showing the defendants owner in possession of the suit land have been held illegal, null and void, hence not binding upon the plaintiffs and there is no direction to the defendants to hand over the vacant possession of the suit land to them. The findings recorded on issue No. 5, however, demonstrate that the plaintiffs-DH have been held entitled to the possession of the suit land. The judgment of the Apex Court in Bhavan Vaja''s case relied upon by learned trial Court, while emphasizing that the executing Court cannot go behind the decree under execution and at the same time has reminded that the Court has duty to find out the true effect of the decree also, which can only be done by construing the decree in appropriate cases, taking into consideration the pleadings of the parties as well as other material leading to the passing of the decree. Therefore, learned trial Court has not committed any illegality while arriving at a conclusion that on proper construction of the decree sought to be executed, the DH has been granted relief of the possession of the suit land also. 6. As regards, objection No.2, learned trial Court has rightly concluded that no such objection could have been raised during the execution proceedings. Had the partition of the suit land been not effected in accordance with law, such defence would have been raised in the written statement and during the course of trial. 7. The 3rd objection seems to be raised merely for rejection for the reason that DH No.1 was attorney of DH No.2 also in execution proceedings. Had the partition of the suit land been not effected in accordance with law, such defence would have been raised in the written statement and during the course of trial. 7. The 3rd objection seems to be raised merely for rejection for the reason that DH No.1 was attorney of DH No.2 also in execution proceedings. The implication of Section 118 of the H.P. Tenancy and Land Reforms Act has also been appropriately considered by learned trial Court for the reason that at page 8 of the decree sought to be executed, it is observed that after purchase of the suit land in the year 1966 by the DH from the father of JD, the entries to this effect came to be recorded in Misal Hakiyat Bandobast Jadid for the year 1971. Therefore, the plaintiffs bestowed with the rights qua the suit land well before coming in force the Tenancy and Land Reforms Act. The findings so recorded even were reiterated by learned lower appellate Court in the bottom of para 11 of its judgment. Even, this Court has also considered this aspect of the matter in the judgment dated 2.12.2016 passed in RSA No. 310/15, preferred by the petitioner-DH. 8. Such being the factual position considered and discussed by the trial Court, the objections so raised has rightly been rejected. No other point is urged nor arises for determination in this petition. The same, as such, is dismissed being devoid of any merits. Pending application(s), if any, shall also stand disposed of. The parties through learned counsel representing them are directed to appear before the executing Court i.e. Civil Judge, Baijnath, District Kangra, H.P. on 19.07.2018. An authenticated copy of this judgment be sent to learned trial Court for record.